Patna High Court - Orders
Sanjay Kumar vs Smt. Pratima Devi on 18 January, 2010
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh
In the High Court of Judicature at Patna
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M.A.No.739 of 2009
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Sanjay Kumar s/o Ram Prasad Mandal, r/o village Jumaria, P.S.
Gopalpur, District - Bhagalpur, aged 31 years, at present posted
as L.D.C. Clerk, Home Minister Office, Delhi ........ Appellant
Versus
Smt. Pratima Devi w/o Sanjay Kumar , aged about, 25 years,
resident of village - Dumaria, P.S. Gopalpur, P.O. Dumaria,
District - Bhagalpur, at present residing at C/O Madhusudan Pd.
Mandal, r/o village Pannuchak, P.S. Kolganj (Ghogha) P.O.
Ghogha, District - Bhagalpur ....... Respondent
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For the appellant: Mr. Bimlendu Mishra
Smt. Poonam Mishra, Advocates
For the respondent: Mr. Shiwesh Chandra Mishra, Advocate
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PRESENT : Hon'ble the Chief Justice
Hon'ble Mr. Justice Shiva Kirti Singh
ORDER
(18/01/2010)
As per Dipak Misra, CJ.
The present appeal is preferred under section 19 of the
Family Courts Act, 1984 calling in question the legal substantiality
of the order dated 23.5.2007 passed in Matrimonial (Divorce) Case
no.101 of 2005 (erroneously written as 101 of 2006 in the order)
by the learned Principal Judge, Family Court, Bhagalpur.
2. The appellant - husband preferred an application
under section 13(1) (ib) of the Hindu Marriage Act, 1955 (for
brevity, "the Act") for dissolution of marriage and to pass a decree
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for divorce. It was put forth in the application that the marriage
between the appellant and the respondent was solemnised on 20th
of April, 2004. After entering into the wedlock the respondent
remained in the matrimonial home for five days and thereafter
proceeded to her parental home without any consultation with the
appellant. After the wife- respondent left for the parental home,
the appellant had to leave for Delhi where he holds job and he
came to his native village Dumaria in Durgapuja holidays. He
took the railways tickets and approached the wife to come to Delhi
with him but she declined to accompany. In such a situation, the
appellant was constrained to come to Delhi alone. Thereafter, the
father-in-law of the appellant asked him on telephone to come to
Pannuchak. On 23.3.2005 the respondent-wife telephoned him
threatening that if you come to Pannuchak he would be killed
either by the respondent herself or by the family members as she
has no relation with him. Again on 3.6.2005 she telephoned that
he should not try to create any kind of obstruction in her happiness.
Despite the aforesaid telephone calls, the appellant came to
village Dumaria on 4.6.2005 and after narrating all these facts to
her parents and other respectful members of the society
proceeded with his father Ram Prasad Mandal and one Radhy
Shyam Mandal to village Pannuchak on 12.6.2005 with intention
to bring back the respondent but she declined to accede the
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request and stated in a categorical manner that she did not like to
live with him as he was suffering from tuberculosis. In this
situation, the appellant had no option but to leave for Delhi on
20th April, 2004 alone. In this factual backdrop, the application
under section 13(1)(ib) of the Act was filed.
3. After notices were issued by the learned Family
Judge the respondent-wife appeared before him and apprised
about her illness and treatment availed but she did not file any
written statement. In the aforesaid factual matrix, the learned
Family Court proceeded exparte as the respondent chose not to
contest the proceeding after receipt of the notice.
4. The husband examined five witnesses to
substantiate the allegation made by him. The learned Family Judge
expressed the opinion that the appellant - husband was suffering
from tuberculosis as no documentary evidence has been produced
before the court to show that he was free from any disease. The
learned Family Court, as evident from the order, opined that the
respondent - wife had a reasonable cause to stay away from the
appellant - husband and the appellant has not been able to prove
anything as regards cruelty. Being of this view, he directed for
judicial separation.
5. Criticizing the aforesaid order, it was submitted
by Mr. Bimlendu Mishra, learned counsel for the appellant that the
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finding of the learned Family Judge that the husband was suffering
from tuberculosis is based on no material on record and, in fact, he
misconstrued the oral evidence. It is also urged by learned counsel
for the appellant that the wife had no justification to stay away
from the husband. It is further urged by him that when there was
ample evidence and the respondent wife had chosen to allow the
application to proceed exparte , there was no rhyme or reason to
discard the evidence brought on record by the husband. It is also
submitted that when a case for desertion has been proved the
decree for divorce should have been passed and not for judicial
separation.
6. Resisting the aforesaid submissions Mr. Shiwesh
Chandra Mishra, learned counsel for the respondent, submitted
that the order passed by the learned Family Judge cannot be found
fault with as a correct finding has been recorded as regards non-
proving of factum of desertion
7. To appreciate the rival submissions raised at the
Bar, we have carefully perused the order and appreciated the same
with studied scrutiny. Bestowing our anxious consideration, it is
found that the learned Family Judge has drawn adverse
inference that when the husband was suffering from tuberculosis,
wife was justified in deserting him. The witnesses have deposed
that the husband was healthy and not suffering from any disease
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and, therefore, there was no justification to hold that he was
suffering from tuberculosis. It is also worth noting that the learned
Family Judge has opined that the respondent was keeping herself
away from court after putting her appearance and hence it could
be construed that she was not willing to live with the husband
because he was suffering from tuberculosis.
8. In our considered opinion, the factum of the
husband suffering from tuberculosis has not been proven but the
wife - respondent did not stay with the husband. There is
categorical pleading and evidence that she left the matrimonial
home only five days after marriage i.e., 20th of April, 2004 and
the application was preferred on 22.6.2005. Thus, though the wife
has stayed away from the husband, the desertion does not come
within 13(1) (ib) of the Act inasmuch as it cannot be held that
she has deserted the petitioner for a continuous period of not less
than two years immediately preceding the presentation of the
petition. Hence, the order not granting divorce cannot be found
fault with.
9. At this juncture, we may note with profit the
submission of Mr. Bimlendu Mishra, learned counsel for the
appellant, as is urged by him, that liberty be granted to file a fresh
application for dissolution of marriage under section 13 (ia) and
desertion as contemplated under section 13(1) (ib) of the Act.
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10. Regard being had to the aforesaid limited prayer,
liberty is granted to move an application under the aforesaid
provisions as advised in law. On filing of such an application the
learned Family Judge shall dispose of the same in quite
promptitude.
11. The appeal is accordingly disposed of. There
shall be no order as to costs.
Sd/- Sd/-
(Dipak Misra, CJ.) (Shiva Kirti Singh, J.)
Patna High Court, Patna
Dated, the 18th January, 2010
NAFR/(Neyaz)